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California’s Emergency Rules of Court – How They Affect Civil Litigators

On April 6, 2020, the California Judicial Council adopted 11 emergency rules in response to the rapidly evolving COVID-19 public health emergency. While most of the emergency rules address important criminal concerns and housing issues, there are implications for civil litigators too. For those who may be wondering how the closure of nearly all court functions across the state and prohibitions on gatherings of people affect their ability to bring actions and conduct discovery, the Judicial Council provided guidance with emergency rules 9 and 11.

Emergency Rule 9 – No Filing, No Problem?
With attorneys unable to file pleadings in some jurisdictions, many litigants faced dire statute of limitations problems in the coming weeks. The Judicial Council addressed those worries with new emergency rule 9, which tolls the statute of limitations from April 6, 2020 “until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.” While perhaps providing some relief, this new emergency rule raises at least two questions.

First, does the court have the power to unilaterally toll statutes of limitation? Yes, thanks to the Governor. On March 4, 2020, Governor Gavin Newson declared a state of emergency in California under Government Code section 8625 related to COVID-19. That statute – and the entire California Emergency Services Act on which it is found – gives the Governor sweeping, almost dictatorial powers in the event of an emergency. Included in those powers is the ability to “make, amend, and rescind orders and regulations” necessary to carry out emergency powers (which orders “shall have the force and effect of law”) and the power to suspend statutes and rules when strict compliance “with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.” Government Code sections 8567(a) and 8571(a). If these broad powers weren’t enough, Government Code section 8627 gives the Governor “complete authority over all agencies of the state government and the right to exercise within the area designated all police power.”

Governor Newson invoked all three of those statutes when he issued an executive order on March 27, 2020 instructing the Judicial Council and Chief Justice Tani Cantil-Sakauye to issue new court rules addressing the crisis. The Governor’s March 27 order removed the subject-matter limitations of Government Code section 68115, which otherwise allows the presiding judge of a jurisdiction to petition the Judicial Council for emergency orders addressing limited issues. Governor Newsom further authorized the Judicial Council to adopt rules “inconsistent with any statute concerning civil or criminal practice or procedure.” Governor Newsom instructed that the purpose of this authorization was to afford “maximum flexibility to adopt any rules concerning civil or criminal practice or procedure . . . necessary to respond to the COVID-19 pandemic.”

Pursuant to the Governor’s March 27 executive order, the Judicial Council met and adopted the 11 emergency rules it approved effective April 6, 2020. Given the Governor’s sweeping statutory powers, and his March 27 order, the Judicial Council has the power to take the extraordinary step of tolling all statutes of limitation for the foreseeable future.

Second, however, is the question of what happens to those litigants whose statutes of limitation expired between the mass court closures of mid-March and April 5, 2020. The new rules do not address these unfortunate parties, and likely could not, given the text of the Governor’s March 27 executive order. That order states that, if a proposed rule suspends a statute, the statute is suspended only once the proposed rule is adopted and effective. Therefore, if a party could not file an action in late March because courts were closed and the statute of limitations has now expired, emergency rule 9 does not and could not help. That unhappy litigant must instead rely on equitable tolling, or the patchwork of superior court orders, some of which proclaimed court holidays through late March under Government Code section 68115(a)(4). Those superior court orders likely have the practical effect of tolling the statute of limitations under Code of Civil Procedure sections 12 and 12a. See Deleon v. Bay Area Rapid Transit (1983) 33 Cal.3d 456, 461.

In short, while emergency rule 9 is a dramatic assertion of judicial power, its suspension of all statutes of limitation left some litigants in the cold. Further, because the suspension will last until 90 days after the Governor declares the state of emergency “lifted,” and because there is no end in sight to the pandemic, the suspension of all statutes of limitation could last well into late 2020 – or beyond. Good news for the plaintiffs’ bar.

Emergency Rule 11 – Is Everyone on the Line?
Even with courts closed, civil litigators can still move their cases forward during this unprecedented time. The Judicial Council has provided more flexibility to keep cases progressing by permitting deponents not to personally appear with the court reporter for their depositions. Emergency rule 11 allows either the deponent or the noticing party to insist the deponent not appear with the court reporter, partially suspending Code of Civil Procedure section 2025.310 and California Rule of Court, rule 3.1010.

While this new rule theoretically allows more depositions to proceed than otherwise would be the case under current stay-at-home orders, it presents logistical challenges attorneys must resolve on their own. Some things to consider: what if the noticing party wanted the deposition videotaped? A videographer is not necessarily a “deposition officer,” and so emergency rule 11 arguably might not apply. How will the noticing attorney present and mark exhibits? Careful pre-deposition coordination with the court reporter, witness, and opposing counsel will be necessary. If the noticing attorney wanted the deponent to draw diagrams or mark up exhibits, how will that be handled? These and other questions will need to be resolved by attorneys in the trenches on an ad hoc basis.

While the new emergency rules provide much-needed relief, many issues are left open. However, emergency rules 9 and 11 provide some relief and guidance for how to handle the coming months. In the meantime, the superior courts will likely continue to issue their own orders giving specific guidance in their jurisdictions, requiring attorneys to be vigilant in monitoring superior court websites for orders and press releases. And, given the Governor’s broad powers and the open-ended nature of this emergency, we likely have not seen the last emergency rules from the Judicial Council.

Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2017 – 2020 SuperLawyers Top 50 Orange County lists. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law and can be reached at 949-239-0907; [email protected];